William T. (Tommy) Simmons Legal Counsel to Commissioner Aaron S. Demerson Commissioner Representing Employers Texas Workforce Commission [email protected] Book: https://www.twc.texas.gov/news/efte/tocmain2.html Web app: https://origin.twc.texas.gov/news/efte/tbcapp/tbccompani on.html Toll-free: 1-800-832-9394 Direct: 512-463-2826
1 General Issues
• Good starting point: all information relating to an employee’s personal characteristics or family matters is private and confidential • Information relating to an employee should be released only on a need-to-know basis, or if a law requires the release of the information • All information requests concerning employees should go through a central information release person or office
2 2 Public Information Act
• Texas law pertaining to government records • Some exceptions to the general rule that agencies must release information upon request: • SSNs and other identity-theft information • Medical information from doctors and hospitals, FMLA, ADA, and the like • Invasion of privacy (court decisions)
3 3 Focus on Personnel Files
• Private employers do not have to release information in personnel files to anyone in the absence of a court order • Best to protect such information from unauthorized disclosure • Have different files for general purposes, medical information, grievances / investigations, I-9, and OSHA purposes
4 4 Personnel Files (Cont’d)
• Release personnel file information to prospective new employers only if ex-employee authorizes it in writing • Train supervisors to never put anything into a personnel file that contains unprovable, undocumentable allegations – too much danger of defamation lawsuits if information is released • Even then, employers should take great care as to what goes into a personnel file!
5 5 Searches
• Landmark case is K-Mart v. Trotti, 677 S.W.2d 632 (1984) – employee won because she had a reasonable expectation of privacy in her locker. Even though it was K-Mart’s locker, the company allowed her to put her own lock on it and didn’t insist on a way to get into the locker.
6 6 Search Policy • To establish compliance with safety and work rules • All employees are subject to the policy • Request to search is not an accusation of wrongdoing, but merely part of an investigation • Search may include all work areas, lockers, vehicles, and personal containers • All of those areas are subject to search at any time • If employee uses personal lock, give key or combination to the employer • Refusal to submit to search may lead to disciplinary action – make sure prior warnings are given! 7 7 Searches – Main Ideas
• The policy needs to let employees know they have no reasonable expectation of privacy in the areas that are subject to searches • If employees have a problem with the idea of certain things being found at work, they should not bring those things to work at all!
8 8 Metal Detectors – X-Ray Machines
• No restrictions on use of machines to detect metal objects or to “see into” employees’ bags, purses, briefcases, and other objects brought to work • Use in conjunction with a search policy • Can be a condition of continued employment • Illegal items should not be handled further – notify local authorities
9 9 Drug Testing
• Federal law allows drug testing of employees in safety- sensitive positions • Nothing under Texas law prohibits an employer from instituting a drug-testing policy • Case law limits application of such a policy in case of government employees • Such a policy is best restricted to safety-sensitive positions
10 10 DOT Regs – Test Results
• Common question: can an employer release test results to TWC in defense of an unemployment claim? • Yes, according to both the DOL and the DOT – this comes under the exception for administrative agencies and courts • Cite: 49 C.F.R. 40.323(a)(1).
11 11 Telephone Monitoring
• It is legal for an employer to monitor employees’ use of the company’s phones for business purposes • Let employees and outside callers know in advance that such monitoring will take place • Stop listening as soon as it is apparent that personal, private details are being discussed – handle from there as a disciplinary matter
12 12 Court Case – Phone Monitoring • Oyoyo v. Baylor Health Network, Inc. (2000) • Federal district court in North Texas ruled there was no invasion of privacy, even though employer reviewed employee’s phone records, monitored her calls, and photocopied her personal calendar • Phone was employer’s property and for business use • Employer had legitimate concern about the employee’s use of phones for personal calls • Employee had posted her calendar on her office wall – no effort to keep it private
13 13 Recording of Conversations
• As long as one party to a conversation knows it is being recorded, it is legal to record it • Be on guard against surreptitious recording of conversations in the workplace • Frank B. Hall Company v. Buck case – company hit with defamation lawsuit after bad statements were made in context of job reference calls
14 14 Video Surveillance
• Same basic rules as for telephone monitoring – if audio is also recorded, notice of such monitoring is needed • Only authorized personnel should ever view surveillance tapes – defamation and invasion of privacy suits can result if tapes are shown to unauthorized persons
15 15 Camera Phones
• Risk: invasion of privacy, theft of company secrets, improper photography • Sexual harassment claims have been filed based on coworkers’ use of such devices • Employer may limit use or possession of such devices in the workplace
16 16 Electronic Surveillance
• With the right kind of policy, employers have the right to monitor the following: • Employees’ e-mail at work • Employees’ use of the Internet • Employees’ use of company computers
17 17 Misuse of Company Computers
• Harassment • Threats • Theft of confidential information • Pornography • Gambling • Sabotage of files • Specific proof needed
18 18 Monitoring and Use Policy
• Every employer needs to have a detailed policy regarding use of company computers • Each employee must sign – it can be made a condition of continued employment • Company has right to monitor all computer usage at all times for compliance • Right to inspect any electronic data or media at any time • Right to withdraw access to computers, Internet, e-mail if needed • No reasonable expectation of privacy in any use of the company’s electronic resources, since it is all company property and to be used only for job-related purposes 19 19 Policy Issues
• Define computers, e-mail, Internet, and so on as broadly as possible, with specifics given, but not limited to such specifics • Define the prohibited actions as broadly as possible, with specifics given, but not limited to such actions • Remind employees that not only job loss, but also civil liability and criminal prosecution may result from certain actions
20 20 Top 5 Reasons to Suspect Internet Abuse! • Employee spends a lot of time online, more than is reasonably needed for the job, yet is strangely non-productive • You hear a lot of hurried clicking as you approach, and the employee greets you with a red face • The Temporary Internet Files folder is filled to capacity • The employee’s computer crashes more than anyone else’s – viruses and excessive demands on RAM • Increase in spam e-mail from employees leaving their addresses all over the Internet
21 21 Why Companies Should Be Concerned
• It is standard for plaintiff’s lawyers and administrative agencies to ask to inspect computer records • Deleting computer files does not completely erase the files – there are many traces left • Tools exist to make data unretrievable, but one has to know how to use them
22 22 Focus on E-Mail • Same basic rules as for telephone monitoring • Let employees and the public know that monitoring will be done for whatever purposes • If unauthorized personal use is detected, don’t keep listening or reading. Just note the incident and handle it as any other policy violation would be handled. • Have your computer experts attach a disclaimer to all outgoing company e-mail that warns of confidentiality and disavows liability for individual misuse or non-official use of e-mail.
23 23 Tracking of Vehicles via GPS
• No law against using such a system in company vehicles in Texas • No notice needed under current law, but might as well let all employees know that all use of company vehicles is monitored that way • If misconduct is detected, preserve the data files for use as evidence in the event of an unemployment claim or lawsuit • Before taking action, give the employee a chance to comment on the information in writing and keep whatever statement the employee gives
24 24 Medical Information
• ADA requires all medical information about an employee to be kept in a separate, confidential medical file • This would include any documentation requested by an employer in connection with the FMLA – always use Form WH-380 • HIPPA regulations put strict penalties on unauthorized release of medical information
25 25 Medical Information Policy
• Controlled access to medical files • Prohibition against improper release of such information • Safeguards against improper disclosure • Prohibition against discussion of such information • Free speech does not include the right to gossip about others • Warn of potential civil / criminal liability
26 26 Fair Credit Reporting Act
• Employers must do the following prior to a background check: • Provide clear notice of the check, and • Get the employee’s written authorization. • Both can be on the same form • The employer can make the written authorization a condition of employment (include the form in the new hire packet) • Blanket authorization is OK
27 27 In Case of Adverse Action:
• Employer must give a pre-adverse action notice with a copy of the report – allow at least a week for the employee to respond • Thereafter, employer must provide the employee or applicant with a copy of the report, the name and contact information for the reporting agency, and a written description of the employee’s or applicant’s rights • Person investigated can also request the sources used for the report and the other recipients of the report
28 28 Thanks for your attendance and Good Luck!
Questions? Contact Commissioner Demerson’s Office 1-800-832-9394 Book: https://www.twc.texas.gov/news/efte/tocmain2.html Web app: https://origin.twc.texas.gov/news/efte/tbcapp/tbccompanio n.html [email protected]
29 29